Personal Injury: Negligent Design of Highway - $600,000 Settlement

Type of Action- Personal Injury-Negligent Design of Highway

Type of Injuries-Coma-persistent vegetative state

Name of Case- Sharon Feller, et al. v. County of Bergen

Court- Superior Court of New Jersey, Law Division, Bergen County

Judge- Robert E. Hamer

Special Damages- All medical bills paid by New Jersey no-fault insurance

Damages Awarded or Settled- Settled

Amount- $600,000: $225,000 cash, PLUS $3,000 per month increasing 3 percent annually plus lump sum payments of: $35.000 in five years; $50,000 in 10 years: $85,000 in 15 years; $146,990 in 20 years. (Present value is $375,000. Expected lifetime payout of $5,586,972)

Total Settlement- $600,000 settlement was for pain and suffering and lost wages only. All past and future medical bills are paid by no-fault insurance.

Attorney for Plaintiff- Kenneth I. Kolpan, Boston, Massachusetts

Insurance Carrier- Crum & Forster

Highest Offer- $600.000

Other Useful Info.- On October 23, 1981, the 19-year-old plaintiff, Sharon Feller was driving 30 mph eastbound on a county road which had a speed limit of 35 mph. It was raining and the roadway was wet. The plaintiff's vehicle skidded off the county roadway and struck a utility pole. Her accident occurred in the same manner that previous skidding accidents had occurred along that stretch of roadway. As a result of her accident, the plaintiff sustained severe brain injury and was diagnosed as suffering from multi- trauma. She has been comatose since Oct. 23, 1981 and is being cared for on a 24-hour basis.

Suit was brought against the defendant county for creating a dangerous condition (an excessive crown) on its roadway when it first constructed the road in 1929 (contrary to its own design specifications) and failing to take corrective action to remedy the dangerous condition once it was given notice of the same. The defendant received a letter from the borough requesting an investigation of the roadway some three years before the plaintiff's accident. The defendant resurfaced the roadway and the number of accidents decreased. The contents of the letter, however, were ruled inadmissible.

Plaintiff's expert engineering testimony established that the dangerous condition on the county roadway was an excessively high crown or cross-slope which in combination with a polished road surface and surface material, caused the plaintiff's car to slide off the roadway and strike a utility pole. Plaintiff's highway engineer expert was prepared to testify that the crown on this roadway was 2/16 of an inch per foot higher than the industry standard. Acceptable cross-slopes are to be 1/16 inches per foot or 1 to 2 percent. The "as built" crown on this roadway was 3/16 inches per foot or about 4 percent.

Through pre-trial discovery, plaintiff's counsel established that the original roadway was not built in accordance with the original 1929 roadway plans. This eliminated defendant's statutory design immunity defense. Though the roadway had been resurfaced some 18 months prior to the plaintiff's accident resulting in fewer accidents, borings taken from the roadway during discovery confirmed that the original crown had not been altered during the resurfacing by a contractor hired by the defendant County.

Plaintiff's counsel established that the defendant received notice of accidents occurring on this roadway by a letter from the local borough requesting an investigation and from accident reports filed with the County highway department. Plaintiff's counsel would have shown that the defendant's response to the borough's letter and police accident reports was palpably unreasonable. The County sent two men out to measure only the length and width of the roadway for resurfacing without determining the cause of the numerous accidents. Had the defendant conducted a proper investigation, it is likely that it would have discovered the excessive crown on the road.

Since the date of her accident until the time of trial, the plaintiff has been in a persistent vegetative state. Plaintiff's expert neurologist would have testified that she does feel pain and would continue to suffer in this condition for the rest of her life (which was stated to be a normal life span). Plaintiff's counsel submitted "A Day in the Life" film demonstrating the plaintiff's present medical condition and her response to her environment.

The defendant contested liability. The defendant posited that:

1) the dangerous crown of only 2/16 of an inch was within the original plans giving rise to statutory design immunity;

2) the plaintiff failed to prove that the defendant created the excessive crown since the plaintiff could not identify the defendant's employees) responsible for building the original roadway in 1929;

3) the defendant had no knowledge of alleged dangerous condition because prior accidents on said roadway did not occur under the circumstances similar to the plaintiff's accident:

4) the defendant's action in resurfacing the road was a proper action to remedy the situations

5) once the surface was repaved only three accidents occurred between the repaving and the plaintiff's accident;

6) rain was the sole cause of the accident for which the defendant has statutory immunity;

7) the accident was caused by the plaintiff's excessive rate of speed; and

8) the 1/16 to 2/16 of an inch excessive crown was not the proximate cause of the accident.

The defendant contested damages as well stating that the plaintiff's present condition was life threatening, thereby shortening her life expectancy. The defendant offered expert testimony that the plaintiff's condition (persistent vegetative state) prevented her from responding to her environment, feeling pain and consciously suffering.

Plaintiff counsel's pursuit of this case was hampered by the borough having misplaced the name, address and report of an eyewitness to the accident. Counsel was able to locate a truck driver who saw the plaintiff traveling under the speed limit about 150 feet before the accident scene. He then heard a crash.

Defendant county brought two motions to summary judgment which were both denied by the trial judge. An interlocutory appeal was taken an denied by the appellate Division.

Settlement for $600,000 was made on the day of trial. Plaintiff will also receive payment to lifetime medical care under New Jersey no-fault law. Her future medical bills are expected to be $15 million.

Published with permission of Massachusetts Lawyers Weekly.